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Report No. 142

Annexure 'A'

Feasibility of introducing the Concept of Plea-Bargaining

The Law Commission of India has undertaken a study of the aforementioned subject in the context of the situation obtaining in the sphere of administration of criminal law throughout the country, namely:-

(1) The dockets of the courts are over-crowded. The arrears of criminal cases awaiting trial have assumed menacing proportions.

(2) Large number of persons accused of criminal offences who have not been able to secure bail or are unable to furnish bail have to languish in jails as under-trial prisoners for years.

(3) A majority of the cases ultimately end in acquittal and even so the time of the court is pre-empted by the protracted trial stretching over a number of years in respect of such cases.

(4) The accused have to undergo mental torture of an impending trial and potential conviction for a number of years.

(5) The accused have also to spend considerable sums of money by way of legal expenses.

(6) The accused have to remain in a state of uncertainty and are unable to settle down in life for a number of years awaiting the completion of the trial.

(7) The jails are over-crowded and the public exchequer has to bear the resultant economic burden.

(8) During the course of the detention as under-trial prisoners, the accused persons are exposed to the influence of hardened criminals.

2. The aforesaid background makes it expedient to examine the feasibility of introducing the concept of plea-bargaining in the administration of criminal justice. It requires to be examined whether it should be restricted to the area of the nature of the offence or should be extended to the area of the extent of the sentence, including releasing the convict on probation in exercise of powers under sections 360 and 361 of the Code of Criminal Procedure.

3. For this purpose, it has become necessary to gather the relevant information and to obtain the views of judicial officers and members of the Bar concerned in the trial of criminal cases. You are, therefore, requested to extend your co-operation by providing the necessary information and by offering your views by way of answering the following queries:-

(1) Do you think that a statutory scheme of plea-bargaining, hedged in by appropriate safeguards and guidelines, can be safely introduced?

(2) What, in your opinion, are the pitfalls to be guarded against and what safeguards can be devised in order to avoid the apprehended pitfalls?

(3) Please draw upon your wide experience to make an approximation as to the percentage of cases tried/handled by you which have resulted in acquittals over a period of, say, last one year.

(4) (a) In the context of your experience of the working of the trial court, do you think that in a sizable number of cases the court could have legitimately accepted the plea of guilty for an offence lesser than the offence with which the accused was cha -ged with upon perusal of the F.I.R., the complaint, the relevant record and F. apers or the record of the committal court, as the case may be?

(b) Can you give a rough estimation of the percentage of such cases over a period of, say, last one year?

(5) (a) Having regard to your wide experience, do you think that in quite a number of cases tried/handled by you, on a bare perusal of the complaint or the F.I.R. or the relevant papers and records, you felt that the allegations taken at their face value disclosed extenuating circumstances justifying the taking of a lenient view in the matter of sentence?

(b) Do you think that if in such cases the accused had the option of plea-bargaining, he would have pleaded guilty if the possibility of a lesser sentence was present in his mind?

(6) Where the Legislature has prescribed the minimum sentence subject to the power to impose a lesser sentence for reasons to be recorded, do you think that an accused would have entered a plea of guilty and confined himself to the extenuating circumstances in a sizable number of cases if the plea was available?

(7) Do you think that in a sizable number of cases where section 360 of the Code of Criminal Procedure is attracted, the accused would have pleaded guilty at the very inception in case the option of plea-bargaining was available to him and it was realised that, having regard to the circumstances of the case, the court would be inclined to release him on probation even on recording a conviction on the basis of plea of guilty?

(8) Do you consider it expedient to extent the concept of plea-bargaining also to cases involving major offences tried by Sessions Judges including offences liable for sentence of death or life imprisonment?

(9) Do you consider it desirable to exclude some category of serious anti-social or economic offences for the purpose of applying the concept of plea-bargaining? If so, please state the details.

(10) A plea of "guilty" has to be entered voluntarily by the accused, that precautions do you suggest to ensure that no coercion, pressure, or influence is brought on the accused to enter a plea of guilty?

(11) Do you consider that pre-trial negotiations towards plea-bargaining should be conducted before a plea-judge (other than the Trial Judge)? Or, do you think the matter could be dealt with by the Trial Judge himself?

(12) Do you consider that the negotiations for plea-bargaining should be conducted in open court or should be conducted in camera in the chambers of the Judge?

(13) Do you consider it necessary that a complete record of all the discussions and representations should be made and preserved in pre-trial negotiations where the plea is accepted?

(14) What safeguards would you suggest that collusion does not take place between the prosecution and the accused as a consequence of which the accused is let off lightly?

(15) (a) Do you think that there is a possibility of the judge before whom plea-bargaining negotiations are conducted being put to embarrassment by being involved in unnecessary controversy?

(b) If yes, what safeguards do you suggest to overcome this problem?

(16) Do you consider that plea-bargaining should be available only for the first offence should be available equally for the subsequent offences?

(17) Do you think that the incidence of crime will increase by reason of a feeling that a person can get away lightly by taking advantage of the plea-bargaining?

(18) Do you consider the system of plea-bargaining would help the rehabilitative process of the criminal?

(19) Do you think that provision should be made for minimum substantive punishment to be imposed in the category of serious offences?

(20) Do you think that a provision should be made that the victim of the offence or his or her near relatives should be given an opportunity to oppose the plea-bargaining? If the accused enters a plea of guilty pursuant to plea-bargaining negotiations, should the victim of the offence or his or her near relatives be given a right of requesting that a reference be made to a higher forum for approving the proposal for entering plea-bargaining?

(21) Do you consider that in socio-economic offences a minimum substantive sentence should be prescribed?

(22) Have you any other suggestions to make in the matter?

Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any bargaining Back

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